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2025 Supreme(SC) 1434
SUPREME COURT OF INDIA
J.B. PARDIWALA AND R. MAHADEVAN, JJ.
Union Of India - Appellant
Versus
Mohd Javed And Others - Respondent
Petitions for Special Leave to Appeal (C) No(s). 24092-24093 of 2019 [Arising out of impugned final judgment and order dated 28-05-2019 in LPA No. 168 of 2019 & CM No. 11617 of 2019 passed by the High Court of Delhi at New Delhi]
Decided on : 08-01-2025
Headnote:(A) Constitution of India - Article 21 - Right to life - Long-Term Visa - Validity of the long-term visa and the right of a foreign national to reside in India - The court emphasized the importance of natural justice and the right to family life for Indian citizens, particularly in cases where the decision affects the right to reside of a foreign national married to an Indian citizen (Paras 5, 6, 8).
(B) Administrative Law - Discretion of authorities - The court noted that while the grant of a visa is discretionary, the removal of a foreign national with a valid visa cannot be arbitrary and must be based on a reasoned decision (Paras 5, 6, 8).
Facts of the case:
The appeal arose concerning a foreign national's long-term visa which was valid until June 8, 2020. The High Court found that the notice to leave India was issued without due process and critical family rights were at stake regarding her husband and two children who are Indian citizens (Paras 6, 8).
Findings of Court:
The High Court quashed the removal notice and emphasized that actions affecting a family unit must comply with natural justice principles (Paras 6, 7).
Issues: The main issues included the validity of the long-term visa, the necessity of a reasoned decision by the authorities regarding residency, and the implications for the family unit in the decision-making process (Paras 5, 6).
Ratio Decidendi: The court reinforced that the right to life in Article 21 includes the right to family integrity and emphasized that arbitrariness in administrative decisions affecting families cannot be allowed (Paras 5, 6, 8).
Result: The Notice dated 7-2-2019 quashed.
| Table of Content |
|---|
| 1. need for representation in ex-parte hearings. (Para 1 , 2 , 3 , 4) |
| 2. discussion on validity of long term visa and arbitrariness. (Para 5 , 10) |
| 3. quashing of arbitrary notices by authorities. (Para 6 , 7) |
| 4. status of nausheen's residence and family situation. (Para 8 , 9) |
| 5. next steps and implications for future hearings. (Para 11 , 12 , 13 , 14) |
ORDER :
1. None appears on behalf of the respondents when the matters were taken up for hearing.
2. Mr. Kanu Agrawal, the learned counsel has appeared on behalf of the petitioner - Union of India.
3. Having regard to the nature of the litigation and the consequences that may ensue if the petition filed by the Union of India is allowed ex-parte, it will be in the fitness of things if someone appears on behalf of the respondents and assist the Court.
4. We are informed that the name of Dr. Nafis A. Siddiqui has been shown as the learned Advocate-on-Record. We are further informed that Mr. Colin Gonsalves, the learned Senior counsel had appeared at one point of time for the respondents.
5. The High Court while disposing of the letters patent appeal and C.M. No.11617/2019 filed by the Union of India in paragraph 37 has summarized its final conclusion as under:-
(a) Nausheen's LTV is valid until 08.06.2020. As of date, she has also applied for citizenship in India, which application is pending with the authorities;
(b) No notice, order or communication has ever been issued to Nausheen by the Ministry or by any other authority calling upon her to show cause against any alleged breach or violation of any terms or conditions of her LTV;
(c) Nausheen's LTV has never been cancelled;
(d) The Ministry's decision, as also the decision of the single Judge, against Nausheen's continued residence in India are based upon intelligence 'inputs' which, in our view, do not disclose matters that are egregious enough nor do they disclose a proximate or causal link between what is stated in the 'inputs' and the issuance of the Notice;
(e) While the single Judge proceeds on the essential basis of Nausheen being an alien who has no 'right' to continue to reside in India, that view omits to note that being the mother of two children who are Indian citizens and the wife of an Indian citizen, directing Nausheen to leave the country would break-up the family and would thereby be a serious infraction of the rights of at least three Indian citizens, namely the husband and the two sons aged 6 and 11 years, to live as a family. It bears mention that appellant/petitioner No.1 in these proceedings is Mohd. Javed, an Indian citizen;
(f) In our view, the right to life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife; and State entities cannot be permitted to deprive Nausheen's sons and husband of these rights, merely by a stroke of the pen, in a manner that smacks of authoritarianism, without authority of law and without complying with basic tenets of natural justice and without affording her an opportunity of hearing to answer any matter alleged against her;
(g) While grant of a visa in the first instance may be a matter of pure discretion with the authorities, curtailing the liberty of residing in the country during the validity of an LTV cannot be permitted except by a reasoned decision, as has been held by the Supreme Court in Hasan Ali Raihany (supra) and by a Division Bench 1 of this court in Mohammad Sediq (supra);
(h) If, as contended by the Ministry in affidavit dated 10.04.2019, it derives the power to regulate the entry, stay and exit of a foreign national from India inter-alia from Section 3 of the FOREIGNERS ACT 1946, then a fortiori such power can never be untrammelled or unregulated since law abhors absolutism and arbitrariness;
(i) What is under consideration here is not Nausheen's 'right' to stay in the country so much as the entitlement of the Ministry to act with manifest arbitra
